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A & M Gerber Chiropractic LLC v. Geico General Insurance Co.

United States District Court, S.D. Florida

June 6, 2017

A & M GERBER CHIROPRACTIC LLC, a/a/o Conor Carruthers, on behalf of itself and all others similarly situated, Plaintiff,



         THIS CAUSE is before the Court upon Plaintiff's Motion and Memorandum in Support of Class Certification, ECF No. [53] (“Motion”). The Court has carefully considered the Motion, all supporting and opposing filings, the relevant authority, and is otherwise duly advised in the premises. For the reasons that follow, the Motion is granted.

         I. BACKGROUND

         Plaintiff A&M Gerber Chiropractic LLC (“Plaintiff”) filed a Complaint, since amended, in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, which GEICO then removed to this Court. Plaintiff is a legal entity that provided medical treatment to an individual named Conor Carruthers (“Carruthers”) for injuries Carruthers sustained in an automobile accident. See ECF No. [23] (“Amended Complaint”) ¶ 13. Carruthers is a “contracting party and/or named insured” on an insurance policy issued by GEICO (“Policy”), and in exchange for treatment, Carruthers “assigned all benefits under the subject policy to Plaintiff.” Id.

         According to Plaintiff, GEICO pays Policy claims pursuant to the fee schedule permitted by Fla. Stat. § 627.736(5)(a) and GEICO's endorsement, FLPIP (01-13) (“Endorsement”). See Id. ¶¶ 7, 10. Under the Endorsement, GEICO states that “[a] charge submitted by a provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted.” Id. ¶ 10. Notwithstanding this Endorsement, Plaintiff alleges that GEICO pays only 80% of the billed amount when the charge submitted by the provider is less than the fee schedule amount. See Id. ¶ 11. In this case, Plaintiff billed GEICO for services less than the amount payable under the elected fee schedule, and pursuant to the Policy and Endorsement, GEICO paid 80% of the charge submitted. See Id. ¶ 14. Plaintiff pleads that pursuant to its interpretation of the Policy and Endorsement, GEICO paid an incorrect amount, a practice GEICO allegedly employs on a wide-spread scale. See Id. ¶¶ 11, 21. As such, Plaintiff seeks a declaratory judgment from this Court on behalf of itself and a class of individuals, asking the Court to “interpret[ ] Florida Statute 627.736 and the insurance Policy issued by GEICO” and declare that “Defendant's Policy requires payment of 100% of the billed charges for all charges submitted under the Policy that are below the fee schedule amount.” Id. at 12. Plaintiff “does not assert a claim for any monetary relief, ” but rather, requests that the Court enter an order requiring notice to class members and grant attorneys' fees and associated costs. See Id. ¶ 1.

         Plaintiff now asks the Court to certify this action as a class action pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2), appoint class counsel under Rule 23(g), and appoint Plaintiff as a class representative. See ECF No. [53]. In response, Defendant argues that Plaintiff has failed to demonstrate that class certification is proper, requiring the dismissal of this action for lack of subject matter jurisdiction. See ECF No. [57]. Plaintiff's timely reply followed. See ECF No. [58].


         District courts have broad discretion in deciding whether to certify a class. Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir.1992). To certify a class action, the named plaintiffs must have standing, and the putative classes must “satisfy an implicit ascertainability requirement, the four requirements listed in Rule 23(a), and the requirements listed in any of Rule 23(b)(1), (2), or (3).” Karhu v. Vital Pharm., Inc., 621 F. App'x 945, 946 (11th Cir. 2015) (citing Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)); see Fitzpatrick v. General Mills, Inc., 635 F.3d 1279, 1282 (11th Cir. 2011) (“[T]he putative class must meet each of the four requirements specified in [Rule] 23(a), as well as at least one of the three requirements set forth in [Rule] 23(b).”); Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir. 2000) (“A class action may be maintained only when it satisfies all of the requirements of Fed.R.Civ.P. 23(a) and at least one of the alternative requirements of Rule 23(b).”). “Under Rule 23(a), every putative class first must satisfy the prerequisites of numerosity, commonality, typicality, and adequacy of representation.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir. 2009) (citing Fed.R.Civ.P. 23(a); Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187-88 (11th Cir. 2003)). Plaintiff has chosen to proceed under Rule 23(b)(2), pursuant to which a class action may be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2).

         “The burden of establishing these requirements is on the plaintiff who seeks to certify the suit as a class action.” Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir.1997); see also Rutstein, 211 F.3d at 1233. The moving party “must affirmatively demonstrate his compliance” with the class certification requirements. Comcast Corp. v. Behrend, --- U.S. __, 133 S.Ct. 1426, 1432 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, ---U.S. __, 131 S.Ct. 2541, 2551 (2011)). That is, “a party must not only be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a) [but also] satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Id. (emphasis added). “A district court must conduct a rigorous analysis of the Rule 23 prerequisites before certifying a class.” Vega, 564 F.3d at 1266 (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996)).


         A. Individual Standing

         “It is well-settled in the Eleventh Circuit that prior to the certification of a class, and before undertaking an analysis under Rule 23, the district court must determine that at least one named class representative has Article III standing to raise each class claim.” In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 679 (S.D. Fla. 2004) (citing Wolf Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000)); Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987) (“[A]ny analysis of class certification must begin with the issue of standing.”)). Indeed, “[o]nly after the court determines the issues for which the named plaintiffs have standing should it address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others.” Griffin, 823 F.2d at 1482. “To have standing, a plaintiff must show (1) he has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to conduct of the defendant; and (3) it is likely, not just merely speculative, that the injury will be redressed by a favorable decision.” Kelly v. Harris, 331 F.3d 817, 819-20 (11th Cir. 2003).

         GEICO does not challenge Plaintiff's individual standing. However, Article III standing is a threshold jurisdictional issue, which the Court must itself address at the onset. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (citing Dillard v. Baldwin County Comm'rs, 225 F.3d 1271, 1275 (11th Cir. 2000)). Here, the named Plaintiff, as an assignee of Carruthers, alleges it suffered cognizable injuries in the form of reduced payments when it submitted claims to GEICO seeking reimbursement for medical services, which were billed at a rate lower than the elected fee schedule, and GEICO, in turn, reduced the reimbursement rate using the explanation code BA. Plaintiff's individual standing requirement is, therefore, satisfied.

         B. Ascertainability

         “Before a district court may grant a motion for class certification, a plaintiff seeking to represent a proposed class must establish that the proposed class is ‘adequately defined and clearly ascertainable.'” Randolph v. J.M. Smucker Co., 303 F.R.D. 679, 684 (S.D. Fla. 2014) (quoting Little, 691 F.3d at 1304 (citing DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970))). “An identifiable class exists if its members can be ascertained by reference to objective criteria.” Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App'x. 782, 787 (11th Cir. 2014) (citing Fogarazzo v. Lehman Bros., Inc., 263 F.R.D. 90, 97 (S.D.N.Y. 2009)). These “objective criteria” should be “administratively feasible, ” meaning that the identification of class members should be “a manageable process that does not require much, if any, individual inquiries.” Id. (citation omitted) (reversing district court decision finding ascertainability satisfied where class could be identified by reference to the defendant's records). If a plaintiff fails to demonstrate that the putative class is clearly ascertainable, then class certification is properly denied. See Walewski v. Zenimax Media, Inc., 502 F. App'x 857, 861 (11th Cir. 2012) (affirming denial of class certification because class was not adequately defined or clearly ascertainable); Perez v. Metabolife Int'l, Inc., 218 F.R.D. 262, 269 (S.D. Fla. 2003) (“A court should deny class certification where the class definitions are overly broad, amorphous, and vague, or where the number of individualized determinations required to determine class membership becomes too administratively difficult.”).

         In the Motion and the Amended Complaint, Plaintiff identified the proposed class as follows:

All health care providers who submitted claims for no-fault benefits under PIP policies to which Endorsement FLPIP (01-13), and any subsequent policies with substantially similar language that were in effect since January 1, 2013, where GEICO ...

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